Citation Nr: 1335795 Decision Date: 11/05/13 Archive Date: 11/13/13 DOCKET NO. 11-27 961 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to service connection for obstructive sleep apnea. ATTORNEY FOR THE BOARD Sarah VanderWood, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1983 to December 1986, from July 1987 to September 1992, and from December 2003 to February 2005. This appeal comes before the Board of Veterans' Appeals (Board) from a September 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. FINDING OF FACT The Veteran's obstructive sleep apnea originated in active service. CONCLUSION OF LAW Obstructive sleep apnea was incurred in active duty. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION The Duties to Notify and Assist As a preliminary matter, the Board notes that the Veteran has been provided all required notice, to include notice pertaining to the disability-rating and effective-date elements of his claim. In addition, the evidence currently of record is sufficient to substantiate the claim. Therefore, no further development is required under 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2013) or 38 C.F.R. § 3.159 (2013). Legal Criteria Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. At 54. Factual Background and Analysis The Veteran contends that his current sleep apnea began during active service. He told the May 2013 VA examiner that in October 2004, while still in service, he began feeling tired and having a low energy level. Some of the men with whom he was stationed noticed that he snored loudly. In December 2004, also during service, his wife noticed that he stopped breathing in his sleep and that she had to wake him up to make him breathe. He was diagnosed with obstructive sleep apnea in July 2005, five months after service. The RO was unable to obtain most of his service treatment records, including those from December 2003 to February 2005. The VA examiner opined that the Veteran's sleep apnea was less likely than not incurred in or caused by service. He reasoned that the Veteran was diagnosed with obesity in addition to residual mild sleep apnea. In his opinion, the preponderance of medical evidence and expertise reveals the proximate cause of sleep apnea to be a developmentally narrow oropharyngeal airway, often with superimposed elevation of body mass index or natural aging. Thus, the examiner related the Veteran's sleep apnea to his obesity or age rather than to service. The examiner also relied on the Veteran's in-service complaints of trouble sleeping due to wild dreams or insomnia, neither of which are typical symptoms of sleep apnea. However, the Board finds that the evidence satisfactorily establishes that the Veteran's sleep apnea did start during service. Lay testimony is competent to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). Here, the Veteran alleged that his wife and military colleagues noticed he snored and could not breathe when he slept. He himself noticed he was tired and had low energy. These are readily observable symptoms that a layperson is competent to report. The Veteran is found credible in his reports of these statements and in his own assertions, as he noted in his service treatment records that he had frequent trouble sleeping and was diagnosed with sleep apnea just five months after leaving service. While the VA examiner attributed the sleep apnea to the Veteran's obesity or age and not to in-service events, his opinion never the less supports the Veteran's contention that his sleep apnea originated while he was serving on active duty. . Moreover, whether the sleep apnea resulted from aging or obesity does not matter. The evidence need only show that the disorder was acquired coincident to the Veteran's active duty. Also, while the examiner reasoned that symptoms such as insomnia and wild dreams are not associated with sleep apnea, this does not negate the existence of his other symptoms. Therefore, the Board finds that the examiner's opinion does not weigh against the finding of a nexus between the Veteran's sleep apnea and the symptoms he experienced in service. In sum, the Board concludes that the evidence supportive of this claim is at least in equipoise with that against the claim. Therefore, service connection for obstructive sleep apnea is warranted. ORDER Entitlement to service connection for obstructive sleep apnea is granted. ____________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs